The International Law of the Sea

By Serdy, Andrew | Australian International Law Journal, Annual 2011 | Go to article overview

The International Law of the Sea


Serdy, Andrew, Australian International Law Journal


Possibly for the wrong reasons--the planting of a Russian flag on the seabed at the North Pole in 2007 and the upsurge starting at about the same time in piracy off the coasts of Somalia, neither of which is evidence of any inadequacy in the existing law--interest in the Law of the Sea among non-specialists in the subject is perking up significantly for the first time since several of its longstanding problems were apparently 'solved' with the adoption in 1982 of the United Nations Convention on the Law of the Sea (UNCLOS). (1) For nearly all of the intervening period, as its first edition appeared the following year, the 'bible' on the subject in the English-speaking world has been the text by Churchill and Lowe. Those who, like the present reviewer, regularly teach the Law of the Sea have been subject to frustration mounting year on year as its current third edition (1999), (2) for all its many virtues, grows ever longer in the tooth--a point made as early as 2006 in the foreword to its nearest German equivalents, (3) Despairing of ever seeing a fourth edition, many will have seized eagerly on this new work by two eminent Australian scholars, and will have been pleased to discover that it is a worthy rival.

The book is divided into 19 chapters. For the benefit of students coming to the subject without a previous grounding in public international law, Chapter 1, on the sources and history of the Law of the Sea, sets the subject in its proper context. There then follow seven chapters on the various maritime zones (eight, no less) in the modern Law of the Sea (the territorial sea and contiguous zone understandably share a chapter, considering that only two articles of UNCLOS deal with the latter zone), although oddly Chapter 8 is presented as being about archipelagic States, rather than the archipelagic waters that are their distinguishing feature; this appears to be a deliberate choice, as it is also the sole exception to what is otherwise an orthodox spatial ordering of the zones. The last 11 chapters are on thematic issues, of which some are of venerable vintage (navigational issues in Chapter 10; Fisheries in Chapter 13; delimitation of maritime boundaries in Chapter 16; dispute settlement in Chapter 18) and others are much more recent (Chapter 19 on oceans governance being the pre-eminent example and one that for obvious reasons is missing from Churchill and Lowe). Since UNCLOS is now front and centre in the Law of the Sea, and is emphatically pail 01 the law of peace rather than of war, to use the basic Oppenheim distinction, military uses of the ocean, which used to be a standard inclusion, have tended more recently to be left out of textbooks. Here, however, they make a welcome return in Chaplet' 12--although the law of naval warfare is given only tantalisingly brief treatment (two pages). The authors do not shy away from some of the controversies on this topic: they believe that hydrographic surveys by military vessels in the exclusive economic zone (EEZ) are part or the freedom of navigation and not subject to coastal State regulation as marine scientific research--though they hedge their bets on whether weapons practice is permissible in that zone. That apart, the content of the pertinent chapters deals well with all the necessary issues with no omissions of any consequence, and Chapter 15 on marine environmental protection, though still a hard slog, is a model of clarity and by Far the most readable account that the reviewer has yet encountered of this increasingly prominent aspect of the law.

The book is engagingly and approachably written, and good use is made of the tabular from for setting out information that lends itself to such treatment. This notably includes the dozens of submissions made by States to the Commission on the limits of the Continental Shelf and the recommendations received in return from the Commission--although, given that this is the currently the most active of: the three institutions established by UNCLOS, this information, showing the stale of play as at 30 October 2009, is inevitably already a little out of date. …

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